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Principle of "Super Classification" Can Be Applied In Order To Warrant Absolute Reservations: Rajeev Dhavan [Read Written Submissions]

Sanya Talwar
13 Feb 2020 1:11 PM GMT
Principle of "Super Classification" Can Be Applied In Order To Warrant Absolute Reservations: Rajeev Dhavan [Read Written Submissions]

The three-day saga of hearings on the issue pertaining to Constitutionality of 100% Reservations of ST Teachers in Scheduled Areas cameto an end on Thursday. Counsel appearing for Respondent(s) advanced brief supplementary arguments in favour of absolute Reservation. Subsequently, Counsel for the Petitioner(s) apprised the Bench briefly with Rejoinder arguments.

Supplementary Written Submissions were handed over by Senior Advocate Rajeev Dhavan (appearing for the State of Telangana) to the Five Judge Constitutional Bench led by Justice Arun Mishra.

Rejoinder Submissions by Advocate C.S.N Mohan Rao were also tendered.

Senior Advocate Rajeev Dhavan's Supplementary Written Submissions

Dhavan added to the Submissions tendered on Wednesday and further sought to justify the sanctity of 100 per cent Reservations.

The following is a crux of Submissions tendered:

1) Principle of "Super Classification" can be applied in order to warrant absolute reservations. This has been dealt with in State of Kerela vs. N.M. Thomas (1976) 2 SCC 310,

"The Constitution itself makes a super-classification between harijans and others, grounded on the fundamental disparity in our society and the imperative social urgency of raising the former's sunken status. Apart from reservation of seats in the Legislatures for harijans, which is a deliberate departure, taking note of their utter backwardness (Arts. 330 and 332), a special officer to investigate and report to the President upon the working of special Constitutional safeguards made to protect harijans has to be appointed under Article 338. Gross inadequacy of representation in public services is obviously one subject for investigation and report. "

2) Application of the "Bottoms Up" approach and not the "Trickle Down" approach by equipping unfavorably positioned people in the society to recognize their rights is essential. Empowering people at every level, disseminating information about their rights and ensuring effective implementation are useful tools for effectuating the principle of "Bottoms Up".

3) Absolute reservations also exist in other states and the State of Rajhasthan is one such example.

The conclusive plea of Dhavan's submissions put forth that reversions of appointments should not be made and future appointments attuned with 100 per cent Reservations must not be invalidated.

Point wise Rejoinder Submissions by Advocate C.S.N. Mohan Rao

Mohan Rao rejoined to the Respondents' Submissions. He sought to invalidate the constitutionality of 100 per cent Reservations made in favour of Scheduled Tribe Teachers at schools situated in Scheduled areas.

The following is a crux of submissions tendered:

  1. Insufficient Data to prove whether "Absolute Reservation" is an effective tool for uplifting status of ST's.

The premise of this submission rests on the mandate of the Governor to make annual reports of quantifiable data to evaluate progress made by scheduled areas.

  1. Knowledge of local tribal language as a pre-requisite qualification is the solution and not absolute reservation for Scheduled Tribes.

  1. Non-obstante clauses of Article 371D & Schedule V of of the Constitution of India cannot be operate independently of each other.

  1. Notification providing for 100 per cent Reservation could not have been made by the Governor (Executive order) as procedures laid down in Schedule V of the Constitution has to be followed.

  1. Basic Structure Doctrine has no applicability in the present factual matrix
    as no challenge has been made to the subsisting provisions of the Constitution but to the unconstitutional legislative action taken under Para 5(1) of Schedule V.

  1. The "Wednesbury Principle of Reasonableness" shall apply to subvert 100 per cent Reservation.

Click Here To Downlaod Rejoinder Submission

[Read Rejoinder Submission]

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